Currently, 14 states offer some incentive(s) in exchange for any employer willing to establish a drug-free workplace program or that meet certain criteria. These incentives typically come in the form of workers compensation premium discounts and/or presumptive intoxication/denial of benefits.
In all but 4 states there is a statutory "intoxication" defense to a workers compensation claim. The intoxication defense in most states requires proof of two things:
1) proof of intoxication
AND
2) proof that the intoxication "caused" the injury. In some states one or both of these 2 steps may be "presumed" if a positive test was conducted per state rules or if the employee refused to test, as seen below.
The following categories describe the variations of state programs: 1- Premium Discount for establishing a DFW program; 2- Positive drug/alcohol test means a presumption of "intoxication;" 3- Positive drug/alcohol test means a presumption of both intoxication and cause, therefore a denial of benefits; 4- Whether an application must be filed with the state to get the benefits; 5- If there is a presumption the employee was NOT intoxicated; 6- The burden of proof to raise the intoxication defense if NO presumption of intoxication or cause exists or if presumption of intoxication exists but "cause" must be shown.
Caution: Court decisions and industrial commission opinions must also be consulted.
Bill Judge is an attorney who, for the past 24 years, has concentrated his practice on research, consultation, and management training related to the legal issues of substance abuse in the workplace and in our nation's schools. Attorney Judge, JD, LLM can be reached at:708-771-9474 or bjudge@lawsinhand.com
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Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
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